WND EXCLUSIVE

See a shrink, lose your gun

New 'rules' would suspend 2nd Amendment even for 'outpatient' treatment

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

In an end-of-week “information dump” often resorted to by political leaders to publicly release information they would like overlooked, President Obama formally has launched his much-feared expansion of the use of mental health diagnoses to crack down on gun ownership.

The Obama Department of Homeland Security already is on record casting aspersions on the mental ability of returning veterans, third-party candidate supporters and people with pro-life bumper stickers – calling them potential “right-wing extremists.” It was also caught, through the IRS, targeting conservative organizations that might be critical of Obama.

So critics of the administration long have warned the move would come. On Friday, it did.

Obama announced that his Department of Justice is proposing a rule change that would “clarify” that being committed to a mental institution – a key red flag under gun ownership rules – would include receiving nebulous “outpatient” services from a professional, such as a psychiatrist.

The president said his Health and Human Services agency is issuing a rule to pierce the privacy protections of the Health Insurance Portability and Accountability Act so there would be “express permission” for “entities” to hand over to the federal government certain medical records – that is, “information necessary to help keep guns out of potentially dangerous hands.”

At the time, the Electronic Privacy Information Center, or EPIC, warned that the administration was widening the door for those subject to a “mental” deficiency definition, looking for ways to send people to a mental institution for “mental defectiveness or mental illness” or “for other reasons.”

“The phrase ‘for other reasons’ is overly broad and vague,” EPIC said. “Although the DOJ has illustrated that drug use is an example of ‘commitments for other reasons,’ the nebulous language would grant the DOJ sweeping authority to prohibit individuals from possessing firearms, a constitutionally protected right.”

The privacy advocates warned: “Until the DOJ clearly defines and enumerates the types of formal commitments that can bar gun ownership, HHS should not amend its regulations to release sensitive mental health information to the DOJ.”

The Obama administration’s gun-control agenda accelerated after the Sandy Hook school shooting in December 2012. It then began to press for “closing background check loopholes to keep guns out of dangerous hands,” a ban on “military-style” weapons and some ammunition magazines, as well as “making schools safer” and improving mental health services.

But the vague generalities used to describe the plans have worried privacy advocates and Second Amendment supporters.

‘Wrong hands’

On Friday, Obama announced his executive actions to “keep guns out of the wrong hands.”

“Too many Americans have been severely injured or lost their lives as a result of gun violence,” his statement said. “While the vast majority of Americans who experience a mental illness are not violent, in some cases when persons with a mental illness do not receive the treatment they need, the result can be tragedies such as homicide or suicide.”

That, he wrote, explains the need for the DOJ rule “to clarify who is prohibited from possessing a firearm” and the HHS rule change is “to address barriers preventing states from submitting limited information … to the federal background check system.”

His statement noted that Obama already has directed federal agencies to hand over criminal records and other “information” about those who are prohibited from having guns “for mental health reasons.”

And he spent $20 million to “improve incentives for states” to hand over background check information to the federal government. He’s proposing to spend $50 million on that in 2014.

At the Washington Times, commentator Michael E. Hammond said, “The real agenda of the gun-hating Obama administration is to strip gun rights from law-abiding Americans, even if the result is to discourage people from seeking counseling.”

He asked: “Do you really think a hunter or gun owner feels somehow less violated when, as a result of sharing his deepest secrets in confidence, his name is turned over to government as either a dangerous or incompetent person and – as has happened – a SWAT team is sent to his house to seize his guns?”

It was just a year ago that Obama announced 23 executive actions aimed at curbing gun rights. Then Congress handed him a massive defeat, refusing to go along with some of the more reaching plans to curb gun ownership.

The federal government admits it already has banned from gun ownership those who have been involuntarily committed to a mental institution, have been found incompetent to stand trial or not guilty by reason of insanity, or otherwise have been determined through an adjudication process to have a severe mental condition.

Judicial records

The mental health records come from the judiciary, not the health system.

Now the federal government wants access to all such records from health care providers, too.

The Electronic Privacy Information Center said the best way to handle the federal government’s plans would be to leave in place the protections provided for consumers under the Health Insurance Portability and Accountability Act’s Privacy Rule, which doesn’t allow such discussions of diagnoses or treatment.

EPIC said at the time if changes are made, there need to be clear protections.

“HHS should assign liability to states that disclose excess mental health data for NICS purposes,” the comments said. “HHS should mandate states notify NICS as soon as possible but no [later] than 10 business days of an incorrect or outdated mental illness record.”

Said EPIC: “There are not enough adequate privacy protections in place, under state law or otherwise, for data collected by state entities for reporting to the NICS. … Many states do not have privacy laws that explicitly address privacy protection of mental health records and availability to the NICS.”

WND also has reported on another anti-gun strategy, which is a possible explanation for why the Obama administration has failed to launch legal action against Colorado and Washington, where voters have voted to legalize marijuana under their state laws, even though federal law doesn’t allow it.

Some have asked if there something about the idea of legalizing marijuana that Washington likes. The idea may have been borne out recently when the Congressional Research Service released its report on the “State Legalization of Recreational Marijuana: Selected Legal Issues.”

As attorneys Todd Garvey and Brian Yeh wrote in the report, Washington has flexibility regarding drug prosecution, stating: “The extent to which federal authorities will actually seek to prosecute individuals who are engaged in marijuana-related activities in Colorado and Washington remains uncertain. President Obama himself has suggested the prosecuting simple possession is not a priority, while the Department of Justice has said only that ‘growing, selling or possession any amount of marijuana remains illegal under federal law.'”

What is more certain, they wrote, is that federal firearms regulators will be aggressive about banning anyone who uses marijuana from buying – or possessing – a weapon.

“With the legalization of marijuana for recreational purposes in Colorado and Washington, it seems likely the ATF will … consider a recreational user of marijuana to be a prohibited possessor of firearms regardless of whether the use is lawful under state provisions,” they wrote.

The attorneys said the ATF specifically has stated “any person who uses or is addicted to marijuana, regardless of whether his or her state has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.”

They further wrote, “These individuals are to answer ‘yes’ when asked on the firearms transfer form if they are unlawful users of a controlled substance.”

The problem arises when the agency wants to appoint a fiduciary – someone to advise a disabled veteran or one receiving certain government benefits – to help with the management of the benefits.

The government then routinely notifies the FBI’s NICS system, a federally maintained list of those whose competency has been challenged. That means they no longer can purchase a gun or even keep the one they may have.

Michael Connelly, executive director of the USJF, told WND the initial lawsuit is to compel the VA to respond to two requests under the Freedom of Information Act.

“The information requested included Veterans Benefits Administration rules, regulations and criteria for making ‘determinations of incompetency due to a physical or mental condition of a benefit recipient,'” the legal team explained.

“The USJF has received numerous complaints from military veterans around the country who are being declared incompetent to handle their own financial affairs and then told that they can no longer purchase or own firearms or ammunition,” said Connelly. “This determination is being made without due process protections for the veterans and the basis for the incompetency ruling is often arbitrary and without a factual or legal basis.”

“The strategy is to use the wide acceptance of the idea that the mentally ill should not have access to firearms as a front for prohibiting a broad array of ‘normal’ people from possessing guns or ammunition. As with most things, the devil is in the details. What is mental illness? Who is mentally ill? How mentally ill must one be to warrant revocation of a fundamental human right? Who makes that determination? Who is ‘normal,’ and how ‘normal’ do they have to be to own guns? We all know people who have dealt with some mental health issues or who people consider a bit odd, but who are also fully functional, completely rational, good people who would never harm anyone. The new anti-rights strategy is to cast doubts on those people and deny them their rights to own guns and ammunition.”

Knox also reported his sources confirm the strategy of using “emergency” legislation to “pass draconian bills with no hearings, no committee votes and no public input” that would further “control” firearms.

“While this anti-rights sneak attack is just getting under way, you can be sure it is well-planned and well-funded, so expect to see a flood of bills dealing with mental health in general and firearms access by the mentally ill in particular introduced in Congress and state legislatures nationwide in the coming months,” Knox wrote.

“These bills will be promoted as ‘common sense,’ but they will contain definitions so broad that hundreds of thousands – possibly millions – of regular folks who have been or are being successfully treated for common, minor, mental and emotional issues will be denied their right to arms as ‘mental defectives.’ People suffering from mild depression, anxiety, post-traumatic stress disorder, even women treated for PMS, could be lumped in with violent schizophrenics and the criminally insane.”